This note analyses through literature review, the GATS provision on domestic regulations and ongoing negotiations in thi
June | 2016
Note Domestic Regulations and Trade in Services Negotiations Considerations for South & South-East Asian countries By Leslie Debornes
Summary This note analyses through literature review, the GATS provision on domestic regulations and ongoing negotiations in this respect, domestic regulations related to trade in services in South & South East Asian countries (state of play and challenges), as well as alternative approaches being discussed and utilized elsewhere. Ultimately some recommendations and suggestions on the way forward are provided.
1 | TECHNICAL NOTE
GATS provisions on domestic regulations & State of Play on this issue at the WTO
framework of rules for trade in services, recognises the right of World Trade Organization (WTO) Members to regulate on the supply of services within their territories to meet national objectives. Given asymmetries existing with respect to the degree of development of services regulations, the particular need for developing countries to exercise this right
Trade in services is increasingly contributing to
is also recognized by the GATS.2 Generally, it is
s including for South &
through regulations that governments ensure that
South East Asian countries, where it is considered as
services of acceptable quality are provided for the
a potential source of social and economic
welfare of their citizens, by inter alia preventing
development.
sector constitutes a
anti-competitive practices and monitoring the
significant share of gross domestic product (GDP)
qualifications and competence of suppliers.3 The
in many developing countries and LDCs of the sub-
GATS therefore does not interfere with Members
regions (for instance Nepal, Pakistan and Sri Lanka).
regulatory objectives and concerns, although it also
With growing global trade and investment flows in
recognises that certain regulatory measures could be
services driven by liberalisation and deregulation of
trade restrictive. It is on this premise that Article
economies, technological advances, as well as cost
VI.4 mandates the Council for Trade in Services to
and other imperatives, the service
develop necessary disciplines that would ensure that
The service
sector offers
many developing countries opportunities
to
measures relating to qualification requirements and
diversify their economies, their export baskets and
procedures, technical standards and licencing
markets, to tap emerging segments that leverage
requirements do not constitute unnecessary barriers
their inherent and acquired sources of comparative
to trade in services.4 The overarching objective for
advantages, and to address domestic concerns of
disciplines on domestic regulation is to ensure good
service
regulatory practices that are criteria-based and
quality,
accessibility
and
economic
transparent in order to promote efficiency.5 Such disciplines would curtail the capacity of powerful countries while undertaking liberalisation of their
interest groups to influence regulations that aim at
service sectors. Domestic regulation has its
serving their interests rather than the wider needs of
importance in protecting national policy, only if it is
society welfare.6
not to be applied as a means for undue trade restrictions.1
The main issue at stake is the relationship between trade
liberalization
and
domestic
regulatory
At the multilateral level, the General Agreement on
authority. It is in this context that the GATS Article
Trade in Services (GATS) which provides the
VI:4 provides for establishment of criteria to
1
4
2
5
http://www.cuts-citee.org/pdf/BP08-WTO-1.pdf Preamble to the GATS 3 WTO Trade in Services Division – Disciplines on Domestic Regulation Pursuant to GATS Article VI.4 Background and Current State of Play
Ibid WTO Domestic Regulation and Services Trade Putting Principles into Practise : An Introduction to domestic regulation and GATS 6 Ibid
1
evaluate the trade restrictiveness of trade in services
constitute unnecessary barriers to trade in services);
through the regulatory framework.
applicability of the disciplines; and their nature (i.e. whether horizontal or sectoral). These issues are
Services are regulated to achieve policy objectives considered to be in public interest.7
necessitated by the fact that market forces alone may not guarantee public interest.
briefly expounded in Annex 1.
This is
Regulation is
therefore a governmental tool through which service suppliers are influenced to supply their services in a particular manner.8
Domestic Regulations in South and South-East Asian countries – a state of play
Although the nature and function of regulatory measures inter alia depends on the sector, and objective to be attained, there are those that cut across the different service sectors, and amongst different countries.9 These could be categorized as supplier-related
instruments,
which
set
A- Some challenges and opportunities in the sub-regions
out
South and South-East Asian policy makers and trade
requirements to supply a given service, and seek to
negotiators need to be fully informed about the
ensure that the supplier has the competence and
opportunities for expanding trade in services
capacity to deliver the service.
Such measures
(unilaterally, regionally and multilaterally) as well as
typically pertain to professional qualifications;
the domestic pre-conditions for successful services
authorization of the supplier; and supervision of the
liberalization. Many developing countries and LDCs
suppliers. The other category are the measures that
have not undertaken an assessment of the potential
are directly service related such as technical standards and price controls.10 The negotiations at the WTO on disciplines for domestic regulation presently revolve around a
still evolving the regulatory frameworks and domestic economies. 11
number of issues that could be categorized as:
The opportunities and risks of liberalizing trade in
transparency obligations; the necessity test (i.e. the
services in South and South-East Asia are delicately
approach to determining trade effect of domestic
balanced. This is particularly so in an environment
regulatory measures to ensure that they do not
7
Key Aspects of Domestic Regulation of International Trade in Services – Dr. Christian Pitschas, LLM April 2013 8 Ibid 9 Ibid 10 Ibid 11 Trade in Services in South Asia: Opportunities and Risks of Liberalization,
(Saman Kelegama) https://books.google.ch/books?id=1IyHAwAAQBAJ&p g=PA292&lpg=PA292&dq=working+party+on+domest ic+regulation,+room+document+south+asia&source=bl &ots=blcOHtKeRg&sig=73ZzkMMDmKv6_3vCk8iKi z6r4_8&hl=fr&sa=X&ved=0ahUKEwi28aK4nJjNAhU DXhoKHZnDEwQ6AEIIzAB#v=onepage&q=working%20party% 20on%20domestic%20regulation%2C%20room%20doc ument%20south%20asia&f=false
2
in which regulatory and competition authorities
comprises a national schedule and contains all of the
have only been recently established, and the
commitments, set out by sector, which a party to a
restructuring of state assets is still far from
trade agreement has chosen to include.
-
12
complete.
commitments in regional services agreements than South and South-East Asia has historically been
that of GATS are called GATS-
plagued by over-regulation; however what is
commitment).15
required is effective regulation. This is particularly Since the signing of the Agreement, the Expert cannot be inspected prior to consumption.
Group on the SAARC Agreement on Trade in
Regulation is even more important in services like
Services has been engaged in negotiating Schedules
health and education, which have important social
of Specific Commitments. The SAARC Commerce
impacts, and services like telecommunications and
Ministers have been monitoring the progress in this
13
finance, which have important economic impacts.
Overview of main Services’ Agreements in place in the Sub-Regions
regard and giving requisite directives aimed at timebound actions for finalization of Schedules of Specific Commitments. At the Eleventh Meeting of the Expert Group, the Schedules of Specific Commitments
were
expected
to
be
finalized.16 However the current progress is not satisfactory, a good start would be to bind whatever unilateral liberalization in services at the existing
SAARC Agreement on Trade in Services (SATIS)
level under SATIS. 17
In order to expand cooperation in trade and further deepen the integration of the regional economies, the South
Asian
Association
for
Regional
Cooperation (SAARC) Agreement on Trade in Services (SATIS) was signed at the Sixteenth SAARC Summit held in Thimphu in April 2010. The Agreement entered into force on 29 November 2012 after ratification by all SAARC Member States. 14
(i.e. under such approach, the list of commitments
12
http://www.cuts-citee.org/pdf/BP08-WTO-1.pdf Ibid 14 http://saarcsec.org/areaofcooperation/detail.php?activity_id=46 15 http://www.unescap.org/sites/default/files/SamanKelegama.pdf 13
16
http://saarcsec.org/areaofcooperation/detail.php?activity_id=46 17 http://www.unescap.org/sites/default/files/SamanKelegama.pdf
3
Provisions on domestic regulations in SATIS
Article 11: Domestic Regulations In sectors where specific commitments are undertaken, each Contracting State shall ensure that all measures of general application affecting trade in services are administered in a reasonable, objective and impartial manner. Each Contracting State shall maintain or institute as soon as practicable judicial, arbitral or administrative tribunals or procedures which provide, at the request of an affected service supplier of the other Contracting State, for the prompt review of, and where justified, appropriate remedies for, administrative decisions affecting trade in services. Where such procedures are not independent of the agency entrusted with the administrative decision concerned, the Contracting State shall ensure that the procedures in fact provide for an objective and impartial review. With the objective of ensuring that domestic regulation, including measures relating to qualification requirements and procedures, technical standards and licensing requirements, do not constitute unnecessary barriers to trade in services, the contracting States shall jointly review the results of the negotiations on disciplines on these measures, pursuant to Article VI.4 of the WTO General Agreement on Trade in Services (GATS).
Source: http://saarcsec.org/uploads/document/SAARC%20Agreement%20on%20Trade%20in%20Services%20(signed)_20121011091030.pdf
the mandate for progressive negotiations on the
ASEAN Framework Agreement on Services (AFAS)
liberalisation of trade in services, recognising that intra ASEAN services liberalisation will strengthen the flow of trade and investment in the services
Trade in services is one of the core fundamentals in
sector among ASEAN Member States, and will
ASEAN economic integration. The initiative
eventually
formally started in 1995 through signing of the
integration in the region. AFAS is based closely on
ASEAN Framework Agreement on Services (AFAS),
the provisions of the GATS. Subsequent decisions
which was two years after ASEAN launched the
were made to further strengthen the services
initiative to work towards ASEAN Free Trade Area
liberalisation in ASEAN, while remaining consistent
(AFTA) for trade in goods through the Agreement
with the GATS provisions.18
contribute
to
overall
economic
on Common Effective Preferential Tariff Scheme for the AFTA (CEPT) signed in 1993. AFAS provides
Free flow of trade in services is one of the important
18
http://www.asean.org/storage/2015/12/ASEANIntegration-in-Services-(Dec%202015).pdf
4
elements
in
realising
ASEAN
Economic
In liberalising services, there should be no back-
Community, where there will be substantially no
loading of commitments, and pre-agreed flexibility
restriction to ASEAN services suppliers in providing
shall be accorded to all ASEAN Member Countries.
services and in establishing companies across
In facilitating the free flow of services, ASEAN is also
national borders within the region, subject to
working towards recognition of professional
domestic regulations. Liberalisation of services has
qualifications with a view to facilitate their
been carried out through rounds of negotiation
movement within the region. 19
mainly under the Coordinating Committee on Services. Negotiation of some specific services
Mutual Recognition Arrangements (MRAs) are
sectors such as financial services and air transport
important initiatives in ASEAN integration on trade
are carried out by their respective Ministerial bodies.
in services. The MRAs facilitate trade in services by
Provisions on domestic regulations in ASEAN FTAs
Article 5: Domestic Regulations Each Party shall maintain or institute as soon as practicable judicial, arbitral or administrative tribunals or procedures which provide, at the request of an affected service supplier, for the prompt review of, and where justified, appropriate remedies for, administrative decisions affecting trade in services.
Where such
procedures are not independent of the agency entrusted with the administrative decision concerned, the Party shall ensure that the procedures in fact provide for an With the objective of ensuring that measures relating to qualification requirements and procedures, technical standards and licensing requirements do not constitute unnecessary barriers to trade in services, the Parties shall jointly review the results of the negotiations on disciplines on these measures, pursuant to Article VI.4 of GATS, with a view to their incorporation into this Agreement. The Parties note that such disciplines aim to ensure that such requirements are, inter alia: 1.
based on objective and transparent criteria, such as competence and the ability to supply the service;
2.
not more burdensome than necessary to ensure the quality of the service;
3.
in the case of licensing procedures, not in themselves a restrictio
In sectors where specific commitments regarding professional services are undertaken, each Party shall provide for adequate procedures to verify the competence of professionals of any other Party.
Source: Agreement on Trade in Services of the Framework Agreement on Comprehensive Economic Co-operation between the
19
Ibid
5
mutual recognition of authorisation, licensing, or
is a risk to create a conflict with domestic values,
certification of professional service suppliers
institutions and practices especially in developing
obtained in one ASEAN Member State by other
countries, given their varied levels of development
ASEAN Member States. The goal of the MRA is to
and therefore adaptability.21
facilitate the flow of foreign professionals taking into account relevant domestic regulations and market
Another concern for developing countries that may
demand conditions. 20
result from international disciplines on domestic regulatory processes is the possibility of likely
ASEAN has also specific articles on domestic
interventions of foreign governments and firms. To
regulation in its Free Trade Agreements with other
address this concern, there are proposals for prior comment
China.
proposed
regulation,
wherein
Members would have to justify the rationale for such regulations before they are adopted.
Developing Countries Concerns in the Negotiations of Disciplines for Domestic Regulation
would also reflect the interests of foreign parties, which would be able to influence outcomes that promote their interests (possibly at the detrimental cost of domestic stakeholders).22 Additionally, most developing countries, and more so in the case of least developed countries, are faced
disciplines for domestic regulation in the GATS, as well as the discussions in the Working Party on Domestic Regulation raise a number of concerns for developing and least developed countries (categories in which the South & South East Asian countries participating in CUTS Business & Trade Connexion belong)
that
arise
from
In such
scenarios the resulting legislation and/or regulation
Literature dealing with the issue of negotiations of
project
on
the
negotiations/discussions. Among the concerns raised is the attempt to adopt universally applicable regulatory frameworks or international standards, based mainly on the experience and practice of developed countries that already have such frameworks in place. Hence there
with institutional weaknesses, coupled with low regulatory capabilities, as well as fragile private sector institutions, which all raise implementation concerns of the future disciplines on domestic regulations. Any other concern is with regard to the reliance on international standards in determining conformity as provided for in Article VI.5(b). Although most international standard setting bodies are formally open to participation of all WTO Members, developing countries due to limited resources and often lack specialized knowledge, have a rate of involvement and degree of influence in setting such standards that is very limited.
As a result,
international standards would mostly reflect
20
Ibid 21 WTO Domestic Regulation and Services Trade Putting Principles into Practice - Services : Lessons from GATS – Hamid Mamdouh
22
WTO Domestic Regulation and Services Trade Putting Principles into Practice - Services : Lessons from GATS – Hamid Mamdouh
6
interests of developed countries, which have the
services cooperation framework of which the
capacity to effectively participate in their setting.
coherence in regulatory frameworks is highlighted
Therefore relying on such standards to determine
as one of the main outcomes. A multiple forum and
conformity would be detrimental to many
multi-stakeholder
23
agenda
will
contribute
to
25
developing and least developed countries.
pursuing this objective.
Alternatives approaches for domestic regulation
The Trans Pacific Partnership The recently concluded Trans Pacific Partnership (TPP) agreement provides for regulatory issues on
Services are a major feature of a new generation of
trade in services. The agreement consists of 12
Regional Trade Agreements (RTAs) that are
Trans-Pacific countries, namely, Australia, Brunei
oriented towards deeper and comprehensive
Darussalam, Canada, Chile, Japan, Malaysia,
integration with a strong regulatory focus,
Mexico, New Zealand, Peru, Singapore, United
addressing behind the-border regulatory measures
States, and Vietnam. The trade partnership aims to:
affecting services, investment and competition. As of 1 February 2016, 625 such agreements were notified to WTO; of these, 419 are in force and 153 consist of services agreements. While only six services RTAs had been notified to WTO before 2000, over 130 additional agreements have been notified since then. Particularly notable is the emergence of two mega RTAs
the recently
concluded Trans-Pacific Partnership Agreement (see more details in IV-A) and the Transatlantic Trade and Investment Partnership. Apart from creating large markets and inducing deep market opening,
these
agreements
would
introduce
promote economic growth; support the creation and retention of jobs; enhance innovation, productivity and competitiveness; raise living standards; reduce poverty; promote transparency, good governance; and enhance labor and environmental protections.
disciplines to induce regulatory coherence and
Relevantly, Chapter 25 of the TPP makes provisions
reduce
for Regulatory Coherence , which aim to ensure an
divergence
in
national
regulatory
24
standards.
open, fair, and predictable regulatory environment
Developing countries have also embarked on regional services liberalization in the context of RTAs (i.e. ASEAN and SAARC as presented above). For
instance,
the
Asia Pacific
Economic
Cooperation (APEC) group on services developed a
23
Ibid. http://unctad.org/meetings/en/SessionalDocuments/c1 mem4d11_en.pdf
for businesses operating in the TPP markets by encouraging
transparency,
impartiality
and
coordination across each government to achieve a coherent regulatory approach. The chapter aims to facilitate regulatory coherence
25
Ibid
24
7
in each TPP country by promoting mechanisms for
expand trade in services with the current
effective interagency consultation and agencies
involvement of 50 participants (all members of
coordination. It encourages widely-accepted good
WTO) that represent 70 percent of the world's trade
regulatory practices, such as impact assessments of
in services. Specifically, TiSA aims at opening up
proposed regulatory measures, communication on
markets and improving rules in areas such as
the grounds for the selection of chosen regulatory
licensing, financial services, telecoms, e-commerce,
alternatives and the nature of the regulation being
maritime transport, and professionals temporarily
introduced.
moving abroad to provide services.26 For instance in the negotiations, the European Commission
The chapter also includes provisions to help ensure
position with regard to licensing is that any amount
regulations are written clearly and concisely, that the
charged for a license could be considered a
public has access to information on new regulatory
restriction on the unlimited supply of a service.
measures (if possible online), and that existing regulatory measures are periodically reviewed to determine if they remain the most effective means of
regulation
is
unnecessarily
burdensome,
achieving the desired objective. organizations applied by that Party should be taken In addition, it encourages TPP parties to provide an
into account. For instance, members would have to
annual public notice of all regulatory measures they
adopt international standards for licensing so as to
expect to take. Toward these ends, the chapter
avoid such measures and procedures being
establishes a Committee which will give TPP
considered unnecessarily burdensome. 27
countries, businesses, and civil society continuing opportunities to report on implementation, share
The architecture of the TiSA annex on domestic
experiences on best practices, and consider potential
regulations is such that its application will be, across
areas for cooperation.
the board, covering any measures related to services regulations, although some Members are insisting
The chapter does not in any way affect the rights of TPP parties to regulate for public health, safety,
technical standards (which are defined within the
security, and other public interest reasons.
text).28
The Trade in Services Agreement
Recommendations & Conclusion
Another
alternative
approach
to
domestic
regulations is the ongoing Trade in Services Agreement (TiSA) negotiations. Although limited
The South & South-East Asian countries should
official information is available on the negotiations,
push for disciplines on domestic regulation to be
the
general in nature such as to accommodate a wide
26
European Commission, Trade in Service Agreement (TiSA). (October 2015) online at: http://ec.europa.eu/trade/policy/in-focus/tisa/ (last accessed February 5, 2016)
27
Ibid. The TiSA Annex on Domestic Regulation-Analysis of 23rd April 2015 Draft accessed at https://wikileaks.org 28
8
variety of national circumstances, while striking a
development of regulatory and institutional capacity
balance so as not to be rendered ineffective.
at the local, national and regional levels of
Disciplines based on the prevailing frameworks in
government, which in itself may require technical
the developed countries should be avoided as they
assistance and capacity building. This should be
would likely cause implementation challenges.
premised on the principle of special and differential treatment similar to what was included in the Trade
Applicability of the resulting disciplines on domestic
Facilitation Agreement.
regulation under Article VI.4 GATS should cover only the specific commitments undertaken by Members as opposed to general application. It would ensure certainty, while also allowing Members to assess future commitments in light of their domestic regulations in place. Resulting obligations from the disciplines on domestic regulations should be conditioned upon
9
Annex 1 WTO Negotiations of Disciplines on Domestic Regulations: the Main Issues and State of Play The negotiations on disciplines for domestic regulation presently revolve around a number of issues that could be categorized as: transparency obligations; the necessity test i.e. the approach to determining trade effect of domestic regulatory measures to ensure that they do not constitute unnecessary barriers to trade in services; applicability of the disciplines; and their nature, whether horizontal or sectoral. These are briefly expounded upon.
Transparency: Article VI.4(a) GATS provides that measures relating to qualification requirements and procedures, technical standards and licensing should inter alia be based on objective and transparent criteria, such as competence and the ability to supply the service. The disciplines in this regard will aim at ensuring that all required information is available to service providers so that trade is not unnecessarily restricted. This envisages that regulations will be made public once they are made. The criteria would include publication and availability of information on regulations and procedures; specification of reasonable time periods for responding to applications for licenses, information as to the reasons for rejecting an application, notification on missing information and specification of time periods for responding to applications among others. In the negotiations, there have been proposals suggesting that the disciplines in this respect should require prior comment and publication of intended regulation, so that their objective and rationality can be explained before they are put in place. There are however concerns that such a requirement would be intrusive on national regulatory autonomy.29
Necessity: Article VI.4 GATS provides for the necessity test in that disciplines shall aim to ensure measures of domestic regulation do not constitute unnecessary barriers to trade in services. For a measure not to constitute an unnecessary barrier to trade it should be based on objective and transparent criteria, and in the case of licensing procedures, not in themselves being a restriction to trade.30 The test is therefore to determine if a measure is in effect restricting trade, and whether there is a need to restrict trade in order to achieve the national policy objective.31 If the measure is found to be restrictive, the next test is to establish whether it is more restrictive than necessary to achieve the set national policy objective, all in all a complex process.32
29
Trade in Services and Sustainable Development: Domestic Regulations, UNCTAD Ibid 31 Ibid 32 Ibid 30
Applicability: The debate on applicability of future disciplines on domestic regulations is whether they should only apply to sectors in which a Member undertakes specific commitments or even where no specific commitments have been undertaken. There are concerns that disciplines of generic application would erode the flexibility in particular for developing countries, to adopt whatever commitment they deem in line with their development needs and institutional capabilities. The other issue with regard to applicability of disciplines is the level of government to be covered, how measures from non-governmental bodies in the exercise of powers delegated by central, regional, local governments, should be dealt with. This issue raises concerns on the administrative burden especially for developing and least developing countries.
Horizontal Vs. Sectoral Disciplines: Another issue under consideration is whether common disciplines on domestic regulation should be developed for all services (horizontal approach), or on a sectoral basis. Ongoing deliberations in the Working Party on Domestic Regulation have focused on the horizontal approach, which is envisaged to result in disciplines for all services sectors.33
Other Principles guiding negotiations: The other main principles guiding the negotiations on disciplines for domestic regulation include: impartiality and objectivity wherein decisions of competent authorities should be independent of commercial interests or political influence and criteria for such impartiality should be clearly spelled out to avoid excessive discretion;34 relevance of foreign qualification and experience wherein account should be taken of such qualifications and experience obtained abroad by a service supplier. Governments are encouraged to negotiate agreements to accept equivalence of qualifications obtained under other jurisdictions;35 acceptance of international standards to facilitate evaluation of qualification obtained abroad.36 A major challenge for the negotiations on domestic regulations is to strike a balance between the sovereign right to regulate and ensuring that such regulation does not unnecessary restrict trade in service. It has been proposed that adopting a set of guidelines for regulatory principles could address this challenge.37 Such principles would apply to rules relating to the supply of services and the regulatory institutions that implement them. In the case of the rules, certain characteristics are suggested to the effect that they should be clear, based on
33
Mattoo, Aaditya Developing Countries in the New Round of GATS Negotiations : Towards a Proactive Role, The World Economy 34 Trade in Services and Sustainable Development: Domestic Regulations, UNCTAD 35 Ibid 36 Ibid 37 WTO Domestic Regulation and Services Trade Putting Principles into Practice - Services : Lessons from GATS – Hamid Mamdouh
objective criteria and should as far as possible reduce the scope for discretionary decision-making.38 The scope of the rules is also important in that the interface between central and other government levels should be taken into account by ensuring that all levels act in a coherent and complementary way.39 On the other hand, in establishing regulatory institutions, it is suggested that certain aspects are taken into account and these include: clear mandate of the institution that reflects its objectives, functions and modus operandi; guarantee the independence of the institution; ensure accountability for decisions taken; and have the requisite human resources in manning such institutions.40
CUTS International, Geneva
© 2016. CUTS International, Geneva.
CUTS International, Geneva is a non-profit NGO that
This note is authored by Leslie Debornes & Yvonne
catalyses the pro-trade, pro-equity voices of the Global
Quaison
South in international trade and development debates in Geneva. We and our sister CUTS organizations in India, Kenya, Zambia, Vietnam, and Ghana have made
debate on specific issues. Readers are encouraged to quote or reproduce material from this paper for their own use, provided due acknowledgement of the source is made.
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38
Ibid Ibid 40 Ibid 39
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